Silly Lawyer Tricks XXXIV

Appellate Practice American Bar Association Litigation Section Spring 2024, Vol. 43 No. 2 ARTICLES Silly Lawyer Tricks XXXIV Thomas J Donlon Mar 14, 2024 This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal. Al -Qarqani v. Chevron Corp. , No. 19-17074, slip op. (9th Cir. June 26, 2023) This is a short opinion, but it packs in a lot of information (particularly when the rest of the docket is viewed). The case began as an arbitration in Egypt. In 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that the arbitration award was not enforceable in the United States. See Al-Qarqani v. Chevron , 8 F.4th 1018 (9th Cir. 2021), cert. denied , 143 S. Ct. 62 (2022). While the case was before the Ninth Circuit, appellants’ counsel filed a motion to attach a supplemental exhibit—a supposed article from the Saudi Sun . Al-Qarqani , No. 19-17074, slip op. at 1. In response, appellees’ counsel informed the court that there was no indication that the Saudi Sun even exists and raised the question of whether the document was prepared by the appellants’ counsel as a fraud on the court. On the same date as the court issued the decision on arbitration enforcement, the court issued an order for appellants’ counsel to show cause why sanctions should not be imposed, “finding the article to be suspicious— and apparently ‘fabricated for the purposes of this litigation.’” Id . After reviewing counsel’s response, the panel appointed a special master to “determine the legitimacy of the article” and to consider what sanctions, if any, should be imposed on appellants’ counsel. Id . The special master held a hearing, “at which [appellants’ counsel] did not appear,” and concluded that counsel fabricated the article “with the intent to mislead the court” and “perpetrated a fraud on the court.” Id . at 2. The special master recommended that sanctions be imposed and that the matter be referred to counsel’s state bar. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Appellate Practice American Bar Association Litigation Section Spring 2024, Vol. 43 No. 2 The Ninth Circuit, rejecting counsel’s procedural and substantive objections, ordered counsel to pay Chevron’s attorney fees and remanded the matter to the district court to determine the amount. The court of appeals also directed the clerk to transmit the order, as well as the special master’s report and recommendation, to the state bar for possible disciplinary proceedings. In January 2024, the district court determined that counsel should pay fees of $251,000 and $17,000 in...